France Parliament
abolishes the "solidarity offence" but maintains custody
for undocumented migrants21.12.2012On 19 December , the French Parliament
abolished a legal provision that sanctions people who provide
support to irregular migrants, through the adoption of a proposal
on "holding migrants for the verification of the regularity
of stay, and amending the offence for support to irregular stay
by excluding humanitarian and non-profit based acts" (projet
de loi relatif à la retenue pour vérification du
droit au séjour et modifiant le délit d'aide au
séjour irrégulier pour en exclure les actions humanitaires
et désintéressées).[1]

The proposal will allow
the amendment of the Code on Entry and Stay of Foreigners and
on Asylum Law (Code sur l'Entrée et le Séjour
et Etrangers et du Droit d'Asile), and the abolition of the
"solidarity offence" (délit de solidarité)
will be seen by many organisations as a victory for campaigns
that have lasted almost a decade. However, the new law is not
all good news for migrants' rights - it is still possible for
migrants to be held in custody for 16 hours for identity check
purposes.

Support to irregular
migrants is no crime

The "solidarity offence" was introduced in French law
in 1945 and made "supporting, directly or indirectly, the
entry, the circulation, or the irregular stay of a foreigner"
punishable by a fine and a maximum of one year's imprisonment
(the minimum prison sentence is one month). The law was amended
several times and made more stringent in 1972, 1976, 1991, 1994,
1996 and 2003, with a fine reaching the amount of 30,000
and up to 5 years' imprisonment.[2]

Although Article 27 of the Schengen convention requires states
to "impose appropriate penalties on any person who, for
financial gain, assists or tries to assist an alien to enter
or reside within the territory in breach of that Contracting
Party's laws," the French legislation made it possible
to harass individuals and sanction any kind of support provided
to irregular migrants - whether for financial gain or not.

In 2003, a petition was launched by 15 organisations and widely
supported by intellectuals and public figures to denounce a law
which aimed to counter solidarity and efforts for irregular migrants
to live in dignity. [3]

Criticism reached its peak in 2009 when the government decided
to get rid of the Calais "jungles" - i.e. informal
settlements in which migrants lived - with many people arrested
by the police on suspicion of facilitating the irregular stay
of migrants.

The case of a retired woman arrested by the French border police
at 7.30 am in February 2009 and held in custody for allowing
migrants to recharge their phones in her house is emblematic.
A demonstration was organised in March 2009 stating that "if
solidarity is a crime, we ask to be tried for this offence."

In April 2009, the then Interior Minister Eric Besson argued
that "there is no such thing as a 'solidarity offence'"
and that "in the 65 years that the law has existed, no one
in France has ever been condemned to have hosted or supported
a migrant in an irregular situation".

The migrant rights organisation GISTI (Groupe d'Information et
de Soutien aux Travailleurs Immigrés) proved him wrong
by drawing up a list of cases since 1986 in which people had
been arrested or interrogated by the police after assisting irregular
migrants.

GISTI has highlighted several pieces of legislation still in
place that sanction providing support to irregular migrants -
carriers' liability, sanctions against employers, defamation
laws - and argues that the current political context tends to
criminalise irregular migration by all means.[5]

Other amendments to the Code on Entry and Stay of Foreigners
saw Parliament provisions making it possible to hold a migrant
in custody on the sole basis that they are irregular.

However, it seems that little has changed - without mentioning
custody, the amended provisions allow the police to "hold"
a migrant for up to 16 hours to check whether the person has
the right to circulate or stay in the country.

The amendments are an attempt to bring French law on the detention
of irregular migrants into line with European law, which, based
on two 2011 cases in the Court of Justice of the European Union
(ECJ), does not allow for the automatic detention of irregular
migrants and emphasises that detention should be used as a last
resort only for the purpose of removal. [7]

The ECJ recently emphasised that the EU Returns Directive does
not oppose penal sanctions directed against irregular migrants,
but noted that detention can only be justified if an individual
is likely to abscond. [8]

Parliament's amendments comes after a ruling by the Cassation
Court on 4 July, which said that irregular migrants could not
be arrested and held in custody for the sole reason of being
in an irregular situation.

Irregular stay was previously considered as a criminal offence
and migrants could be arrested and held in custody for up to
24 hours for an identity check if they were suspected of staying
irregularly on the territory.

If the migrant was found to be in an irregular situation, they
could then be imprisoned or deported. It is estimated that about
60,000 migrants are held in custody each year, while an average
of 200 people are imprisonment and 100,000 removal procedures
are launched annually.

The new measures - condemned as "custody called retention"
- have been fstrongly criticised by migrant rights organisations
like France Terre d'Asile, the Cimade, and GISTI. [9]

The regular identity check procedure in France allows police
officers to hold anyone in custody for four hours, but the new
legislation creates a state of exception where the law applies
differently to non-nationals.

Moreover, the law does not specify where migrants may be "held"
although it is likely that police stations will be used for this
purpose. A lawyer will only be present for 30 minutes at the
start of the procedure.

According to the GISTI's president, Stéphane Maugendre:

"We call it the 'comfort custody', i.e. the authorities
have time to issue a removal order. Everybody is fine with it,
except the person in custody, deprived of liberty".
[10]Sources

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